Note:
Decisions of a three-justice panel are not to be considered as precedent before
any tribunal.

ENTRY ORDER

SUPREME
COURT DOCKET NO. 2005-420

JULY
TERM, 2006

State of Vermont } APPEALED
FROM:

}

}

v. } District
Court of Vermont,

} Unit
No. 2, Chittenden Circuit

Michael Deloreto }

} DOCKET
NO. 5519-10-04 CnCr

Trial Judge:
Michael S. Kupersmith

In
the above-entitled cause, the Clerk will enter:

Defendant
appeals from a conviction, based upon a jury verdict, of aggravated assault.
He contends the court erroneously admitted evidence of prior bad acts under
V.R.E. 404(b).[1] We affirm.

Defendant=s conviction arose from an
incident that occurred in October 2004. Defendant and another man, John
Desjarlais, were drinking in the apartment of a mutual friend, Anne Marie
Hanifin. Desjarlais testified that Hanifin went into the bedroom to lie down;
that he heard her fall out of bed and went in to help her back into bed; that
he then lay down in the bed next to her, and that defendant, seeing this,
attacked him with a knife, cutting his face. When Desjarlais attempted the
call the police, defendant grabbed the phone and threw it to the floor.
Desjarlais managed eventually to call the police. When they arrived, they
observed that Desjarlais had a laceration near his eye, and Hanifin was
extremely intoxicated and upset. Desjarlais described the attack to the
officers, and indicated that defendant had threatened Ato call his friends@ if Desjarlais called the police. Hanifin
recalled that she had asked defendant to leave before retiring to the bedroom,
and that he resisted and pushed her head against the bedroom door. She heard
the men scuffle but did not see the fight or the knife.

Defendant, who
had left the apartment before the police arrived, was stopped on the street by
the police, arrested, and transported to the station. The arresting officer
observed blood on defendant=s
hands, which defendant attempted to rub off. The officer recalled that, while
being processed, defendant made a number of veiled threats against the
officer, Desjarlais, and Hanifin. Defendant testified at trial that he was the
victim and that when he entered the bedroom, Desjarlais jumped out of bed with
a knife and attacked him.

Defendant=s sole claim on appeal
concerns Hanifin=s
testimony that defendant physically abused her on several occasions prior to
the incident. The issue arose as follows. Defendant had filed a motion in
limine prior to trial to preclude the introduction of any evidence concerning
prior incidents of his violence or abuse on the ground that the State had filed
no notice of its intent to introduce prior bad acts. The court granted the
motion Aunless the
defendant opens the door.@
On direct examination by the State, Hanifin was asked about an encounter she
had with defendant after the incident, at which point defense counsel objected
that the State was attempting to introduce prior bad act evidence Awithout giving me notice.@ The court overruled the
objection, and Hanifin testified that defendant saw her on the street and told
her Athat he knew
people@ and that he
could kill Desjarlais if he wanted to. Hanifin acknowledged that she had not
informed the police about the threat, but indicated that she had told
Desjarlais.

The defense
later called Hanifin as a witness and questioned her about the encounter with
defendant. Defense counsel recalled that, during an earlier deposition,
Hanifin had said Acertain
unflattering things about [defendant]@
but had Anever said
anything about any threat.@
He asked whether this was because she was now Afabricating@ the threat, which Hanifin
denied. On cross-examination by the State, the prosecutor asked about the Aunflattering@ things that Hanifin had
reported and why she had failed to report the threat to the police. Defendant
objected, and the State argued that defendant had opened the door to testimony that
Hanifin was afraid to report the threat to the police because defendant had
threatened and physically abused her in the past. Defense counsel denied that
he had opened the door, but advanced no other objection or argument against the
testimony other than to note that Hanifin had invited defendant to her
apartment at least once since the incident. The court overruled the objection,
but offered to give a limiting instruction, which defense counsel accepted.
The court then informed the jury that Hanifin=s
testimony about defendant=s
past conduct was offered only to show why she was afraid, and was not to be
used as evidence that defendant acted in conformity with the past acts in
connection with the charged offense. Hanifin then recalled her earlier
deposition testimony recounting several incidents in which defendant had kicked
and punched her.

On appeal,
defendant contends the court erred in failing to weigh the probative value of
the evidence of defendant=s
prior violence against its prejudicial effect, under V.R.E. 403. Defendant
acknowledges that he did not expressly object to the evidence on this ground,
but argues that such an objection was apparent from the Acontext,@
citing State v. Shippee, 2003 VT 106, &
12, (mem.). In Shippee, the court had ruled prior to trial that certain
bad-act evidence was inadmissible because its unfair prejudicial effect was not
outweighed by its probative value. Id. &
4. During the trial, however, the State again moved to admit the evidence,
and the courtCover an
objection that it was inadmissible Apropensity@ evidenceCallowed its admission. Id.
& 9. On appeal,
we ruled that Athe
necessary interaction between 404(b) and 403 in determining the admissibility
of prior bad acts evidence, the context in which the objection was made, and
the court=s pretrial
404(b) ruling on Rule 403 grounds@
were sufficient to alert the trial court to defendant=s prejudice claim and to preserve the issue
for appeal. Id. &
12.

The facts here
are quite different. Defendant=s
pretrial motion was based solely on lack of notice, the initial objection at
trial was on the same ground and later on the ground that defendant had not
opened the door to the evidence, and defendant never made any argument,
expressly or by implication, that the evidence was unfairly prejudicial.
Accordingly, we are not persuaded that the issue was preserved for review on
appeal. See id. &
10 (to preserve issue for review on appeal, timely objection is required to
allow trial court to rule on issue Aintelligently
and quickly@). The
question, therefore, is whether the admission of the testimony was plain error,
which requires the demonstration of Aerror
so grave that it strikes at the very heart of defendant=s constitutional rights or it affects the fair
administration of justice.@State v. Franklin, 2005 VT 90, &
6 (mem.). Although the jury here was required to choose between two quite
different versions of what had occurred, the victim=s account that defendant was the aggressor was
strongly bolstered by Hanifin=s
testimony that defendant had assaulted her just prior to the knife attack, by
the wounds to the victim, by defendant=s
efforts to conceal blood on his hands, by the police observations that Hanifin
and the victim both appeared to be quite shaken, and by the police testimony
that defendant had threatened both Hanifin and the victim during his booking.
The court also was careful to instruct the jury both prior to the testimony in
question and at the conclusion of the trial on the permissible use of the prior
incidents. Accordingly, we cannot conclude that the prejudicial effect of the
evidence was such that its admission was plain error.

Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.